EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective (the "Effective Date") as of the closing date of the proposed initial
public offering of Global Traffic Network, Inc., a Delaware corporation located
at 0000 Xxxx Xxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000 (the
"Company"), by and between the Company and Xxxxxxx X. Xxx III, with a mailing
address of 0000 Xxxxxx Xxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000 (the "Employee").
BACKGROUND
A. The Company desires to employ Employee as the Company's President
and Chief Executive Officer in accordance with the terms and conditions of this
Agreement, and wishes to obtain reasonable protection against unfair competition
from Employee following termination of employment and to protect itself against
unfair competition and the use of its confidential business and technical
information.
B. Employee wishes to provide services to the Company in exchange for
compensation and is willing to grant the Company the benefits of the various
covenants contained herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing facts, the mutual
covenants set forth herein and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Employment. The Company hereby employs Employee as the Company's
President and Chief Executive Officer, and Employee hereby accepts such
employment and agrees to serve the Company to the best of his ability, promoting
the Company's interests and business and devoting substantially all of his
business time, energy and skill to such employment.
2. Duties and Powers. While Employee is employed hereunder, and
excluding any periods of vacation, sick, disability or other leave to which
Employee may be entitled, Employee agrees to devote substantially all of
Employee's attention and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to discharge the
responsibilities assigned to Employee pursuant hereto and under the Company's
bylaws as amended from time to time, to use Employee's reasonable best efforts
to perform faithfully and efficiently such responsibilities as set forth in
EXHIBIT A attached hereto. Employee shall perform such duties under the
direction of, and shall report to, the Company's Board of Directors (the
"Board") or a committee thereof. Employee shall comply with the Company's
policies and procedures; provided, however, that to the extent such policies and
procedures are inconsistent with this Agreement, the provisions of this
Agreement shall control.
3. Term. The Employee's appointment and position hereunder shall be
effective as of the Effective Date. This Agreement shall continue for five (5)
years after the Effective Date or until earlier terminated as provided pursuant
to Section 9.
4. Salary. As described above, the Company shall pay to Employee an
annual salary of Twenty-Nine Thousand One Hundred Sixty-Six and 67/100 Dollars
($29,166.67) per month, the
equivalent of Three Hundred Fifty Thousand Dollars ($350,000) per year,
according to the Company's normal payroll business practice, commencing, if
ever, on the Effective Date. The Company shall increase Employee's annual salary
by an amount equal to Fifty Thousand Dollars ($50,000), provided that certain
profit levels as determined by the Board have been achieved.
5. Discretionary Annual Bonus. The Board may in its discretion
determine to grant cash bonus compensation to Employee in an amount up to
$50,000 and a bonus in the form of stock awards or grants of options to purchase
capital stock of the Company, dependent upon such factors or goals as may be
determined by the Board from time to time.
6. Discretionary Share Grant. Employee may receive a grant of up to
500,000 shares of the Company's common stock (the "Share Grant") if: (i) the
Company's stock has traded at an average closing sales price of $30.00 per share
of common stock for 20 consecutive trading days, as reported on the NASDAQ (or
such other market or exchange if the Company's common stock is then quoted or
listed on a market or exchange other than the NASDAQ); and (ii) the Board in its
sole discretion determines to grant Employee the Share Grant. Employee
recognizes, acknowledges and agrees that even if the condition set forth in
"(i)" above is met, whether the Share Grant is made is in the sole discretion of
the Board and if the Board determines not to make the Share Grant, Employee
shall have no recourse or right to obtain the Share Grant. The Company reserves
the right to withhold the requisite number of shares from the Share Grant to
cover federal, state and other tax obligations of the Company with respect to
the Share Grant.
7. Other Benefits. Employee shall be entitled to participate in or
receive benefits under any employee-benefit plan made available by the Company
in the future to its employees, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans, specifically
Employee is entitled to receive medical, dental and life insurance consistent
with plan benefits enjoyed by members of the Company management. Nonetheless, in
its sole discretion the Company may amend or terminate any such employee-benefit
plan providing benefits generally to its employees. Employee shall be entitled
to an aggregate of two weeks of paid vacation in each calendar year.
8. Reimbursement of Business Expenses. Upon presentation of appropriate
receipts and/or vouchers, the Company shall reimburse Employee for the
reasonable and necessary expenses he incurs in connection with the performance
of his duties, in accordance with any and all Company's policies and procedures
governing such expenses.
9. Termination. Notwithstanding the term set forth in Section 3 hereof,
this Agreement may be earlier terminated as set forth below:
(a) by the Company without Cause (as defined below) upon 30 days
written notice to Employee;
(b) by the Company, immediately upon written notice to Employee
for the following events, each of which would constitute "Cause": (i)
Employee is convicted of a felony; (ii) Employee has materially breached
this Agreement; (iii) Employee's material violation of a Company policy
that has a materially adverse effect on the Company; (iv) Employee's
failure to perform his duties as the Company's President and Chief
Executive Officer as required by this Agreement, which failure has not
been cured by Employee after ten days written notice thereof to Employee
by the Company; or (v) Employee's habitual intoxication, drug use or
chemical substance abuse by any intoxicating or chemical substance;
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(c) by Employee, upon 30 days written notice to the Company, in
the event of a material breach of this Agreement by the Company;
(d) by Employee voluntarily upon at least 30 days written notice
to the Company, specifying an effective date for such termination; and
(e) upon the death or disability of Employee. For the purposes of
this Agreement, Employee's "disability" shall occur if Employee shall
become incapacitated by accident or illness and, in the sole determination
of the Board, shall be unable to perform the duties of the positions he
then occupies with reasonable accommodation for a period of time of not
less than 90 consecutive days, and the Company provides 30 days written
notice to the Employee at any time after such period of disability.
In the event of any termination occurring by virtue of paragraphs
(a) through (e) above, Employee shall be entitled to compensation and
benefits, if any, accrued through the effective date of termination.
Furthermore, if Employee's employment is terminated pursuant to paragraphs
(a) or (c) above, he shall continue to receive the salary payments
specified in Section 4 for the 18-month period immediately following the
effectiveness of any such termination (the "Severance Payments").
10. Confidential Information.
(a) Employee will hold all Confidential Information (as defined
below) in the strictest confidence and never use, disclose or publish any
Confidential Information without the prior express written permission of
the Company and its Board. Employee agrees to maintain control over any
Confidential Information obtained, and restrict access thereto to the
Company's employees, agents or other associated parties who have a need to
use such Confidential Information for its intended purpose. Employee
agrees to advise and inform any party to whom he has provided access to
the Confidential Information of its confidential nature, and further
agrees to ensure that such parties be bound by the terms and obligations
of this Agreement that relate to confidentiality.
(b) Upon the Company's request, all records and any compositions,
articles, devices and other items which disclose or embody Confidential
Information, including all copies or specimens thereof in Employee's
possession, whether prepared or made by Employee or others, will be
delivered to the Company.
(c) All documents and tangible items provided to Employee by the
Company or created by Employee for use in connection with his employment
by the Company are the sole and exclusive property of the Company and
shall be promptly returned to the Company upon termination of employment
with the Company, together with all copies, recordings, notes or
reproductions of any kind made from or about the documents and tangible
items or the information they contain.
(d) For purposes of this Agreement and subject to the following
paragraph, the term "Confidential Information" shall mean all information
developed by Employee as a result of his work with, for, on behalf of or
in conjunction with the Company and any information relating to the
Company's processes and products, including information relating to
research, development, manufacturing, know-how, formulae, product ideas,
inventions, trade secrets, patents, patent applications, systems,
products, programs and techniques and any secret, proprietary or
confidential information, knowledge or data of the Company. All
information disclosed to
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Employee or to which Employee obtains access, whether originated by
Employee or by others, which is treated by the Company as "Confidential
Information," or which Employee has a reasonable basis to believe is
"Confidential Information," will be presumed to be "Confidential
Information."
Notwithstanding the foregoing definition, the term "Confidential
Information" will not apply to information which (i) Employee can
establish by documentation was known to Employee prior to its receipt by
Employee from the Company, (ii) is lawfully disclosed to Employee by a
third party not deriving such information from the Company, or (iii) is
presently in the public domain or becomes a part of the public domain
through no fault of Employee.
(e) The Company shall in turn keep all personal nonpublic
information about Employee that the Company may now have or hereafter
acquire in strict confidence and shall not disclose any such personal
nonpublic information except as required by law or ordered by a court of
competent jurisdiction, or with the consent, express or implied, of
Employee himself.
11. Restrictive Covenants. Employee agrees that during the period
Employee is employed by the Company (commencing on the Effective Date) and
continuing for a period one year following the termination of this Agreement for
any reason or no reason, Employee will not, without the prior express written
consent of the Company, directly or indirectly, engage in any of the following
actions:
(a) render services, advice or assistance to any corporation,
person, organization or other entity which engages in the provision of
traffic and/or news information to radio and television stations anywhere
outside of the United States, or engage in any such activities in any
capacity whatsoever, including without limitation as an employee,
independent contractor, officer, director, manager, beneficial owner,
partner, member or shareholder of any provider of traffic and/or news
information; provided, however, that Employee may be a shareholder of a
corporation other than the Company, required to file periodic reports with
the Securities and Exchange Commission under Section 13 or 15(d) of the
Securities Exchange Act of 1934 where his total holdings are less than one
percent of the issuing corporation's issued and outstanding publicly
traded securities; or
(b) induce, solicit, endeavor to entice or attempt to induce any
customer, supplier, licensee, licensor or other business relation of the
Company to cease doing business with the Company, or in any way interfere
with the relationship between any such customer, vendor, licensee,
licensor or other business relation and the Company; or
(c) induce, solicit or endeavor to entice or attempt to induce any
employee of the Company to leave the employ of the Company, or to work
for, render services or provide advice to or supply confidential business
information or trade secrets of the Company to any third person or entity,
or to in any way interfere adversely with the relationship between any
such employee and the Company.
12. Conflicts of Interest. Employee agrees that he will not, directly or
indirectly, transact business with the Company for his own benefit, or as agent,
owner, partner or shareholder of any other entity; provided, however, that any
such transaction may be entered into if approved by a majority of the
disinterested directors serving on the Board after full disclosure.
13. Further Assurances. Each party shall, without further consideration,
execute such additional documents as may be reasonably required in order to
carry out the purpose and intent of this Agreement.
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14. Arbitration.
(a) The parties will, to the greatest extent possible, endeavor to
resolve any disputes relating to the Agreement through amicable
negotiations. Failing an amicable settlement, any controversy, claim or
dispute arising under or relating to this Agreement, including the
existence, validity, interpretation, performance, termination or breach of
this Agreement, will finally be settled by binding arbitration before a
single arbitrator (the "Arbitration Tribunal") which will be jointly
appointed by the parties. The Arbitration Tribunal shall self-administer
the arbitration proceedings utilizing the Commercial Rules of the American
Arbitration Association ("AAA"); provided, however, the AAA shall not be
involved in administration of the arbitration. The arbitrator must be a
retired judge of a state or federal court of the United States or a
licensed lawyer with at least five years of corporate or commercial law
experience and have at least an AV rating by Martindale Xxxxxxx. If the
parties cannot agree on an arbitrator, either party may request the AAA to
appoint an arbitrator which appointment will be final.
(b) The arbitration will be held in that particular State and
municipal location in which the Company's headquarters, at the time of any
such arbitration's institution, is located. Each party will have discovery
rights as provided by the Federal Rules of Civil Procedure within the
limits imposed by the arbitrator; provided, however, that all such
discovery will be commenced and concluded within 60 days of the selection
of the arbitrator. It is the intent of the parties that any arbitration
will be concluded as quickly as reasonably practicable. Once commenced,
the hearing on the disputed matters will be held four days a week until
concluded, with each hearing date to begin at 9:00 a.m. and to conclude at
5:00 p.m. The arbitrator will use all reasonable efforts to issue the
final written report containing award or awards within a period of five
business days after closure of the proceedings. Failure of the arbitrator
to meet the time limits of this Section 14 will not be a basis for
challenging the award. The Arbitration Tribunal will not have the
authority to award punitive damages to either party. Each party will bear
its own expenses, but the parties will share equally the expenses of the
Arbitration Tribunal. The Arbitration Tribunal shall award attorneys' fees
and other related costs payable by the losing party to the successful
party as it deems equitable. This Agreement will be enforceable, and any
arbitration award will be final and non-appealable, and judgment thereon
may be entered in any court of competent jurisdiction. Notwithstanding the
foregoing, claims for injunctive relief, may be brought in a state or
federal court in the state court in Las Vegas, Nevada.
15. General Provisions. This Agreement shall be interpreted and enforced
in accordance with the laws of the State of Nevada without regard to its
conflicts-of-law provisions. The venue for any action hereunder shall be in Las
Vegas, Nevada. If any provision of this Agreement shall be held by any court of
competent jurisdiction to be illegal, invalid or unenforceable, such provision
shall be construed and enforced as if it had been more narrowly drawn so as not
to be illegal, invalid or unenforceable, and such illegality, invalidity or
unenforceability shall have no effect upon and shall not impair the
enforceability of any other provision of this Agreement. This Agreement contains
the entire understanding of the parties with regard to all matters contained
herein. There are no other agreements, conditions or representations, oral or
written, expressed or implied, with regard to the matters contained in this
Agreement other than those referenced in this paragraph. This Agreement
supersedes all prior agreements relating to the matters contained herein. This
Agreement is and shall be binding upon the heirs, personal representatives,
legal representatives, successors and assigns of the parties hereto; provided,
however, that Employee may not assign this Agreement because the services to be
rendered hereunder are unique and personal in nature. This Agreement may be
amended only in writing, signed by both parties. Any waiver by either party of
compliance with any provision of this Agreement by the other
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party shall not operate or be construed as a waiver of any other provision of
this Agreement, or of any subsequent breach by such party of a provision of this
Agreement. Any notice to be given under this Agreement by either Employee or the
Company shall be in writing and shall be effective upon personal delivery or
delivery by mail, registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the party at the address set
forth at the beginning of this Agreement, but each party may change its or his
address by written notice in accordance with this paragraph. Notice delivered
personally shall be deemed given as of actual receipt and mailed notices shall
be deemed given as of three business days after mailing. The parties hereby
mutually represent and warrant that they are authorized to execute and deliver
this Agreement, that this Agreement will be valid and enforceable against each
party upon their execution and delivery of the same, and that there are no
restrictive agreements binding them which may affect their ability to perform
their respective obligations hereunder. If any party is made or shall become a
party to any litigation (including arbitration) commenced by or against the
other party involving the enforcement of any of the rights or remedies of such
party, or arising on account of a default of the other party in its performance
of any of the other party's obligations hereunder, then the parties shall bear
their own expenses and attorneys' fees. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same agreement. Signatures delivered by
facsimile and other means of electronic communication shall be valid and binding
to the same extent as original signatures.
Signature Page Follows
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement
on this 18th day of November, 2005.
COMPANY:
GLOBAL TRAFFIC NETWORK, INC.
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
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Its: Treasurer and Vice President
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EMPLOYEE:
/s/ Xxxxxxx X. Xxx III
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Xxxxxxx X. Xxx III
Signature Page - Employment Agreement
EXHIBIT A
Duties of Employee:
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